03/21/2019

This week the Supreme Court granted certiorari in two cases that may lead to originalist analysis.

In Ramos v. Louisiana, the issue is whether the rule of unanimous criminal juries under the Sixth Amendment applies to the states. In Kahler v. Kansas, the issue is whether the Eighth Amendment or the Due Process Clause requires a state to recognize an insanity defense.

Both issues are way outside my areas of expertise but on a quick look they seem to invite originalist analysis. Ramos asks the Court to overrule its prior decision in Apodaca v. Oregon (1972). Apodaca was decided in a time when selective incorporation was more accepted. As the Court's recent decision in Timbs v. Indiana indicates, selective incorporation is suspect these days (Timbs incorporated the excessive fines clause against the states unanimously without any hesitation). Partly I think this is a formalist impulse -- it does not look right (to formalists) to have judges pick which rights are and are not incorporated based on their own intuitions (which is pretty much what Apodaca did). But I also think there is a historical sense that whatever else the Fourteenth Amendment did, it as a general matter was intended to extend the Bill of Rights to the states. In any event, I would think that to overrule Apodaca the Court will need strong historical evidence that the unanimous criminal jury was a well-established right in 1868. And if it turns out that the unanimous-jury rule is itself a dubious originalist interpretation of the Sixth Amendment (which does not on its face say juries must be unanimous), that would be a reason to keep Apodaca.

In Kahler, the historical angle also could be important. My understanding is that the insanity defense in some form has ancient roots (at least in the death penalty context). If that's right, it could play a role in persuading Justices that are not generally sympathetic to such claims.

In sum, Kahler and Ramos are both cases in which historical/originalist arguments may be deployed to reach politically liberal results.

03/20/2019

Rickey I. Kanter pleaded guilty to one count of federal mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and for billing Medicare on that basis. Both federal law and Wisconsin law bar a convicted felon from possessing a firearm.

On Friday, a Seventh Circuit panel ruled (in Kanter v. Barr) that the application of those federal and Wisconsin bars to Kanter did not violate his Second Amendment rights. In an impressive dissent (beginning here), Judge Amy Coney Barrett explained why she disagreed. From her opening paragraphs (emphasis in original):

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward— legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety. ...

Commentators have puzzled over Justice Scalia's paragraph in District of Columbia v. Heller in which he seemed to approve of various limitations on gun possession, including possession by felons, without explaining how to determine which limitations are constitutional. I think, consistent with his approach to the First Amendment, this is clearly how he would have done it -- by asking what limitations were commonly imposed in 1791 and thereafter. (See my discussion in this article).

... [I]s it constitutional for a state to prohibit open carry while broadly allowing concealed carry—as some states do today? The “original meaning” sources relied on by the Heller Court, the right-to-carrycases extolled by the Heller Court, and post-Heller decisions from lower courts indicate that the right to bear arms is not infringed as long as law-abiding citizens are able to publicly bear arms either openly or concealed.

03/19/2019

In an essay published this winter, Ed Whelan asked: “[W]hat if the Court said, ‘We believe this is the best reading of the Constitution. We recognize that it will be disruptive, and we’re going to give the political branches X years to work through an amendment to address this if they see fit’?” Whelan’s idea of staying the effect of a U.S. Supreme Court (SCOTUS) decision for a fixed time is similar to the idea of allowing a judicial decision to apply prospectively but not retrospectively, even though the usual federal rule is that judicial decisions apply both prospectively and retrospectively.

As discussed in The Law of Judicial Precedent (c. 2016, chapter 37), the federal rule against prospective-only judicial decisions has exceptions, such as when retrospective application would destroy vested rights or contracts. Whelan suggests another exception, and it’s a reasonable one. I don’t think that such an exception would always be appropriate in constitutional cases, or even in constitutional cases that make a clear break with past decisions. However, in a constitutional case where the Court would otherwise reach a different result based upon reliance interests and stare decisis, and thus would preserve a departure from the Constitution’s actual meaning, the Whelan exception seems wise, as well as very similar to the existing exception that protects vested rights or contracts. Allowing an appeal to the American people would seem like a very respectful thing for SCOTUS to do.

One could imagine variations on Whelan’s proposal. For example, the Court might stay its decision long enough to give people ample time to rely more fully on the status quo ante, while giving them plenty of time to prepare for the decision to take effect. But ultimately, the actual meaning of the Constitution would prevail, and the Court’s former error would be corrected.

I do not believe that staying a decision in these ways would be unconstitutional. But even if unconstitutional, the stay would be a temporary procedural matter, compared to permanently and substantively amending the Constitution (in effect) by judicial decision for as long as the country survives into the future, all the while tempting future judges to repeatedly wield that awesome amendment power.

Justices Douglas and Scalia may seem like an odd couple, but Scalia laudably wrote this in a 1989 dissent: “With some reservation concerning decisions that have become so embedded in our system of government that return is no longer possible (a description that surely does not apply to Booth), I agree with Justice Douglas: ‘A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it.’" Indeed, preserving the gloss is not as necessary as the Court has sometimes said.

Justice Gorsuch suggested in 2015 when he was on the Tenth Circuit that the retroactivity of judicial decisions follows from the separation of powers. But I do not believe he ruled out exceptions to retroactivity. Justice White went a lot farther than making exceptions to retroactivity, in a 1987 SCOTUS dissent:

[C]oncerns about the supposed usurpation of legislative authority by this Court generally go more to the substance of the Court's decisions than to whether or not they are retroactive. Surely those who believe that the Court has overstepped the bounds of its legitimate authority in announcing a new rule of constitutional law will find little solace in a decision holding the new rule retroactive. If a decision is in some sense illegitimate, making it retroactive is a useless gesture that will fool no one. If, on the other hand, the decision is a salutary one, but one whose purposes are ill-served by retroactive application, retroactivity may be worse than useless, imposing costs on the criminal justice system that will likely be uncompensated for by any perceptible gains in "judicial legitimacy."

White’s concerns can be addressed much more modestly by making a small number of SCOTUS decisions prospective-only starting on a future date certain. This would probably do wonders for the original meaning of the Constitution, although it is possible that some justices might take it as an opportunity to give their own preferred innovations a smoother birth.

[Senator] Warren’s wealth tax would be constitutional. The defining characteristic of a “direct tax,” according to the Founders, is that it is the kind of tax in which apportionment among the states by population would be appropriate and reasonable. If apportionment among the states by population is not appropriate and reasonable, the tax is not a direct tax.

The original meaning of “direct tax” was a tax directly on states, that is, requisitions. The term “direct tax” expanded, as language often expands, to include the kinds of state taxes that could be used to satisfy state requisitions. But if a tax could not be reasonably and appropriately apportioned among states by population, the tax does not sufficiently resemble a state requisition and so the tax is not direct. Thus, for example a tax on imports was not a direct tax because it could not be known in which state the goods would settle and which state should get credit in its quota under a requisition. Excises, duties and carriage taxes were once considered direct taxes because they were part of the system of requisitions upon the states, but they were excluded from the definition of “direct tax” once it was known that they did not have the necessary reasonable and appropriate apportionability.

Today, apportionment of a wealth tax by population is not reasonable or appropriate. Wealth per capita in poor Mississippi is just over half of wealth per capita in rich Maryland. Apportionment by population would mean that tax rates in Mississippi would have to be almost twice the rates in Maryland. The result has no policy justification, but would simply arise by necessity from the fact that Mississippi is such a poor state that is has so little tax base over which to spread its quota. Because apportionment would not be reasonable, a tax on wealth today would not be viewed as direct using the Framers’ original reasoning.

Thus, the Framers divided federal taxes into two mutually exclusive categories: direct taxes subject to apportionment, and all other non-direct taxes such as duties, imposts and excises subject to the uniformity requirement. Non-direct taxes generally fall on commercial transactions and related activity such as imports, exports, manufacturing activity, sales and consumption. The Framers considered non-direct taxes to be a relatively safe form of taxation because they tend to be self-limiting for reasons related to basic economics. If Congress raises non-direct taxes, that will increase the cost of the commercial activities being taxed. The commercial activity will decrease as a result of the greater economic burden, and so will government revenue. Congress has a real incentive to be reasonable, as well as a requirement to be uniform.

Direct taxes, by contrast, are not self-limiting in the way that taxes on commercial activities are. The Framers were more concerned that taxes levied directly on individuals might be increased to abusive levels, so they sought to limit the potential for abuse with the rather cumbersome apportionment requirement.

03/18/2019

Tyler Broker (Privacy and Free Expression Fellow, University of Arizona James E. Rogers College of Law) has posted Church And State Originalism (University of Memphis Law Review, forthcoming) (34 pages) on SSRN. Here is the abstract:

This work focuses on the religious separation clauses contained within the First Amendment and offers both a descriptive claim that current doctrine is far too narrow, and a normative claim that a broader Madisonian framework of free conscience religious liberty is superior to current doctrine.

And from the introduction (footnotes omitted):

An intellectual distinction between “civil” and “spiritual” authority long preceded the enactment of the United States Constitution. It was not until ratification however, that the first country in recorded history with no established religion arose into actual practice. The religious separation clauses contained within the First Amendment are also unique in that, unlike most other historic provisions debated during ratification, battle lines based on political affiliation, educational background, or religious association did not develop in Congress over the issue. The reason for unity behind such an unprecedented commitment was most Founders viewed the principle behind separation, the so-called “liberty of conscience”, as an unalienable right necessary to the Lockean commitment to life, liberty, and property.

How the abstract principle of free conscience was expressed in practice depended, of course, on the concerns, customs, and institutions of the time. At the time of the Founding, two chief concerns of the citizenry were limitations on the power of the federal government in general and limitations on the government’s power to tax in particular. The antitax rhetoric of the revolution produced “from the moment of independence from England in 1776 . . . formal protests with state legislatures around the country, demanding to be freed of the responsibility to pay taxes to support churches from whose doctrines they dissented.” Such widespread responses demonstrated an obvious practical reality for the Founders; mandatory religious taxation was problematic in such a religiously diverse country. There were still some at the state level however, who remained committed to government funding of churches. The desire to keep tax assessments for religious purposes at the state level led to informative debates regarding the fundamental elements of religious separation.

The most famous and influential of these debates occurred in pre-Constitution Virginia where a bill was proposed that would have permitted tax assessments for churches, but afforded citizens complete individual autonomy to select which church could receive the funds. The bill also included specific exemptions for Quakers and Mennonites who belonged to churches without clergy. Along with the specific exemptions, all undesignated funds were to be directed to the state general fund for developing “seminaries of learning” that were not required by the text of bill to be religious in nature in order to receive funding.

In the view of the bill’s proponents, including founders such as Patrick Henry, the absence of continued public funding of religion at the state level was “fatal to the Strength and Stability of civil government.” However, because the proposed bill “would have no Sect or Denomination of Christians privileged to encroach upon the rights of another” and granted the individual total autonomy to direct the funds, its proponents argued they were offering “a General and equal contribution of the whole state upon the most equitable footing that is possible to place it.” To James Madison however, this nonpreferential, neutrally applied, and individual choice assessment framework proposed in Virginia remained impermissibly coercive to freedom of conscience.

...

Madison ultimately succeeded in defeating the religious assessment bill in Virginia. However, Madison’s victory in establishing his own framework of religious freedom of conscience was, at first, limited to the state of Virginia. In fact, many other states adopted the type of framework Madison successfully rejected and kept such systems in place well after ratification of the federal constitution. Although not every state legislature adopted Madison’s exact structure, during ratification of the federal Constitution Madison was successful in persuading Congress to embrace his principled version of freedom of conscience that he had successfully passed in Virginia....

... To understand how the freedom of conscience principles championed by Madison in Virginia became the fundamental American precepts of religious separation in the Constitution, one need only examine the history and plain language of the religious separation clauses contained within the First Amendment.

This paper inquires whether conservative political philosophy provides intellectual resources that might be expected to prevent judges from yielding to the temptation to impose their own strong moral beliefs about how society should be improved. The question emerges from the fact that for more than four decades a Supreme Court dominated by relatively conservative appointees has continued to produce decisions mandating radical social changes that cannot be convincingly traced to conventional sources of legal authority.

The paper examines a range of ideas about what conservatism is and rejects the possibility that most of these can be expected to discipline the temptation to impose personal moral visions and aspirations. However, one strand of conservative thought is identified that can provide the necessary self-restraint. This strand is found in the writings of Burke on tradition and of Oakeshott on practical knowledge and in Scalia’s defense of the practice of defining traditions at the narrowest level of generality.

It's not clear to me, however, how a particular brand of political philosophy can be a restraining influence on people (especially judges) who don't share that philosophy. True, one could attempt to convert everyone to that philosophy, but it seems perhaps more likely that one could find an institutional argument (such as judicial restraint or originalism) that might appeal to people of various political philosophies.

Jonathan Gienapp, author of The Second Creation: Fixing the American Constitution in the Founding Era, is a junior colleague of [Jack] Rakove’s at Stanford. Like Rakove and [Mary Sarah] Bilder, he considers Madison central to his exposition. But rather than make Madison’s Notes on the Constitutional Convention his subject, Professor Gienapp focuses on the activities of the first Congress, where Madison was a prime mover. Gienapp argues that the first Congress, in essence, engaged in a “second creation” of the Constitution, abandoning one closer to the British “constitution” of broad principles which guaranteed flexibility and change in favor of one fixed in meaning for all time, the interpretation of which relied on an “original understanding” of the document’s framers. In other words, Gienapp sees the first Congress as a moment of constitutional transformation.

The progressive trope of transformation, which implicates the notion of a “living” or “evolving” Constitution, seems like it was designed, consciously or unconsciously, to support modern judicial progressives, such as the members of the Warren Court or Justices Anthony Kennedy and Sandra Day O’Connor, who understand their task to be to refashion constitutional principles—particularly the “equal protection” and “due process” provisions of that charter—to fit the “evolving standards of decency” that supposedly characterize American civilization.

Rakove’s, Bilder’s, and Gienapp’s books could be seen as an attack on the jurisprudence of originalists like Justices Antonin Scalia and Clarence Thomas, who embrace the notion that the only sensible and valid strategy of constitutional hermeneutics is to interpret the document according to its plain meaning at the time it was passed or amended. The theory of an evolutionary development of constitutional meaning, based as it is on an idea similar to Darwin’s speculation with regard to the evolution of the species, has undeniable intuitive appeal. Nevertheless, evolutionary jurisprudence is in uneasy tension with more basic ideas about ours being a government of laws and not of men, and thus with our hallowed concept of the rule of law itself. If judges become legislators, there is an end to separation of powers, and popular sovereignty also goes by the board. Some scholars are fighting a rearguard action. But Gienapp’s new book and the honors bestowed on previous books telling a similar story—Horwitz’s and Bilder’s books both won the Bancroft Prize, the highest accolade the history fraternity can bestow—show that alternative stories about constitutional and legal development are out of favor.

And from later on:

The notion that one can look to the debates in Congress for authoritative interpretations of the Constitution undergirds Gienapp’s book, but it is mistaken. Gienapp is a historian, not a lawyer, and his book has very little on the early federal courts and how they understood the Constitution. While Rakove once appeared to understand that there were great men before Agamemnon—most other American historians appear to believe that the work of the federal courts did not begin in earnest until John Marshall became Chief Justice in the early nineteenth century—Gienapp does not support his argument about a second creation of the Constitution by examining the interpretation of the Constitution in the federal courts in the 1790s. Had he done so, I suspect he might have discerned that the Constitution was not transformed from a malleable to a fixed document. Rather, the implicit fixed-meaning approach—without which Federalist 78 is incomprehensible—prevailed from the beginning to the end of the decade in the courts.[12] If one wants to understand constitutional hermeneutics, one’s inquiry should include all three branches of the government, and perhaps even the attitudes of the press, the public, and the academy, though this may be asking too much of any single scholar.

Thanks to Will Foster for the pointer.

RELATED: For coverage of other reviews of The Second Creation, see here (generally favorable symposium at Balkinization), here (generally negative review by Ilan Wurman), and here (comments by Mike Rappaport).

There is something missing in interpretive theory. Recent controversies—involving, for example, the first travel ban and funding for sanctuary cities—demonstrate that presidential “laws” (executive orders, proclamations, and other directives) raise important questions of meaning. Yet, while there is a rich literature on statutory interpretation and a growing one on regulatory interpretation, there is no theory about how to discern the meaning of presidential directives. Courts, for their part, have repeatedly assumed that presidential directives should be treated just like statutes. But that cannot be right: Theories of interpretation depend on both constitutional law and institutional setting. For statutes, the relevant law comes from Article I and the procedures governing Congress. For presidential directives, the starting point must be Article II. This Article contends that Article II and the distinct institutional setting of the presidency point toward textualism. Article II, particularly the Opinions Clause, gives the President considerable power to structure the process by which he issues directives. Drawing on various sources—including the author’s interviews with officials from the Trump, Obama, and other administrations—this Article offers a window into that process. Since at least the 1930s, presidents have invited agency officials to draft, negotiate over, and redraft presidential directives. The final directive signed by the President may not reflect his ideal position; instead, presidents often issue compromise directives that reflect their subordinates’ recommendations. This Article argues that courts respect that structure, and hold presidents accountable for any mistakes, by adhering closely to the text. Thus, whatever one thinks about honoring the textual compromises that come from Congress, there are independent and important reasons to hew strictly to the text that comes from the White House. Notably, this analysis has important implications not only for interpretive theory but also for broader questions about the constitutional separation of powers. In an era of ever-expanding presidential power, presidents have at times (and surprisingly) allowed themselves to be constrained by their own administration.

03/14/2019

Next week I have the privilege of participating in a symposium at the University of Nevada at Las Vegas on substantive due process. I plan to use my time to argue that the Court should not only repudiate that anti-textual, anti-historical doctrine, but also suggest the Court should not use either the Ninth Amendment or the Privileges or Immunities Clause as its substitutes. The costs of the Justices enforcing their personal views on natural law, morality, or call it whatever you want, are just too great, especially when it looks like we will for the near future need the Court to save its prestige and energies for difficult and urgent separation of powers problems. I will briefly sketch out my general arguments here, and eventually write a much more detailed article on the subject.

There are legalist arguments against using any of the three constitutional provisions above as a font of judicially invented fundamental rights (other than those listed in the Constitution). These arguments are not my main reasons for rejecting a fundamental rights doctrine because being a legal realist I understand that judges and scholars can manipulate formalist arguments. But I mention them for those who think legal doctrine matters to the Justices.

Some scholars and judges believe that "substantive due process" is a textual oxymoron. As Professor John Hart Ely said a long time ago, it is “a contradiction in terms—sort of like ‘green pastel redness.’” Professor Jamal Green vigorously disputes this characterization arguing among other things that there are some deprivations that cannot be justified by any process, and therefore the phrase must have substantive content. Nevertheless, the text seems to suggest procedural protections either mostly or exclusively.

Although some folks have tried to make an originalist case for the doctrine, Professors Michael McConnell and Nathan Chapman have exhaustively researched the subject and concluded that "contrary to the claims of some scholars, however there was virtually no precedent before the Fourteenth Amendment that restricted liberty or the use of property. Contemporary resorts to originalism to support modern substantive due process doctrines are therefore misplaced." There are likely non-frivolous historical arguments against this view, but the analysis by these two scholars is more than sufficient to justify a formalist veto on judges or scholars suggesting originalism justifies using substantive due process to protect non-textual, fundamental rights.

But his more central point:

So I can easily defend my position against judicial creation of fundamental rights on formalist grounds alone, but such arguments rarely convince anyone. My more persuasive arguments rest on policy.

When the Court has articulated fundamental rights not listed in the Constitution, it has miserably failed and almost always bad consequences have followed the Court's inventions...

A bold view for someone on a left-of-center site (and he gets some pushback in the comments).

A Justice may deem a statute to be unconstitutional only when, after careful analysis, the Justice determines that the statute clearly conflicts with the Constitution. A Justice may not deem a statute to be unconstitutional if the relevant constitutional provision, at the end of the analysis, has two or more plausible meanings and the statute is consistent with one of those plausible meanings. It’s not enough, in other words, that the statute is inconsistent with what the Justice regards as the best reading of the constitutional provision. If there remains a plausible alternative reading that can be reconciled with the statute, the Justice must apply the statute.

This concept might fairly be labeled a “presumption of constitutionality.” A statute, that is, is presumptively constitutional. That presumption may be rebutted, but only by showing that the statute clearly conflicts with the Constitution.

This principle has deep roots. Indeed, it inheres in the very foundation of what we call judicial review: the power or, perhaps better, the duty of federal courts to decline to apply statutes that violate the Constitution. In his justification of judicial review in Federalist 78, Alexander Hamilton explains that the Constitution is a “fundamental law” that, like any other law, judges must interpret in order to “ascertain its meaning.” In the event of what Hamilton calls an “irreconcilable variance” between the Constitution and an ordinary statute, judges need to apply the Constitution, the law of, as he puts it, “superior obligation and validity,” in preference to the statute. Chief Justice Marshall’s exposition of judicial review in Marbury v. Madison closely tracks Hamilton’s reasoning.

This is an important strand of originalism theory, associated with academic theorists such as John McGinnis and Richard Kay. It's not the same thing as pure judicial restraint -- all of these authors would accept courts finding laws unconstitutional in a wide range of areas. But it's a key counterpoint to the more fashionable "New Originalism," which posits that when originalism "runs out" -- that is, when originalism cannot provide a clear answer -- judges can supply outcomes through "construction." The Whelan/McGinnis/Kay thesis, in contrast, I understand to say that when originalism runs out, so does a judge's authority to find a law unconstitutional.

The story of constitutional change under the Australian Constitution has several strands. On the one hand, the Constitution is relatively difficult to change with an unusually rigorous amendment procedure. The Constitution’s rigidity is buttressed by a strong (though not unbroken) tradition of judicial legalism, characterised in the constitutional context by a commitment to textualism and a moderate form of originalism.

At the same time, there are a number of forces that call into question the significance of the rigidity of the Australian Constitution. If the focus of inquiry is limited to the formal written Constitution, the dominant narrative of Australia as “[c]onstitutionally speaking … a frozen continent” has some force. In this chapter, however, we seek to broaden the lens. We argue that the Constitution’s narrowness in fact facilitates political change, some of which rises to the level of informal constitutional change. In particular, we seek to show that judicial legalism has been deployed in ways that call into question the claim that it has stymied constitutional development. Finally, we argue that the social role of the Constitution is slowly, subtly shifting, which indicates a disruption of the orthodox view of the Constitution and which may in turn provide increased impetus for constitutional change in Australia.

The picture of constitutional change that the Australian model presents is thus particularly complex, demonstrating the cross-cutting forces of constitutional form, legal tradition and politics. It shows, moreover, that understandings of, and approaches to, constitutional change may themselves change over time.

To present this picture we will start this chapter with an overview of the Constitution before moving to discuss formal and informal change of the Constitution including distinct questions about change posed in the Australian setting.

03/11/2019

Recently, the Center for the Study of Constitutional Originalism held its annual Works-in-Progress Conference. One of the papers was written by Dean William Treanor of Georgetown Law School. (Both Bill and I were at Yale Law School as students and we both wrote originalist student notes, though from very different perspectives.)

Bill’s paper “Framer’s Intent: Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution” is extremely interesting. He argues that Gouverneur Morris, who was a delegate at the Philadelphia Convention, had an extremely important influence on the Constitution produced by the Convention. Morris, who served on the Committee on Style that took the constitutional provisions agreed upon by the Convention and wrote them into a single document, was the lead author and in a very real sense “wrote the Constitution.” While Morris’s important role is well known, Treanor’s paper is the first work that I know about that discusses Morris’s role systematically. I highly recommend reading it once it is publicly available.

It turns out that the changes from Morris’s hand were quite substantial. Morris had an enormous effect on much of the now familiar constitutional language, including on the Preamble, the structuring of the first three articles of the Constitution, the three Vesting Clauses, the Supremacy Clause, and the Contract Clause. Significantly, Treanor argues that Morris’s changes were not generally recognized by the Convention and therefore he may have slipped these changes passed the Convention so that the language of the Constitution did not really represent the Convention’s intent.

In addition to noting Morris’s changes, Treanor argues that they had a dramatic effect on the Constitution. Treanor maintains that without those changes the Constitution would have had a number of unambiguous meanings, but that Morris’s changes meant that the Constitution was now ambiguous—and that Morris’s preference for a nationalist constitution, with a strong President and judiciary, and protection for property rights—could now be argued as one of the legitimate interpretations of the Constitution. Indeed, Treanor claims that as a result of Morris’s pen, the Constitution is unclear in many important ways, allowing for construction (rather than interpretation) of many of its provisions.

I am not sure I agree with this part of the paper. First, we do not really know whether Morris slipped these changes by or whether the delegates supported them (even though Madison’s Notes do not mention their discussing them). Second, I would need to study Morris’s changes much more carefully before I concluded that they rendered the Constitution more ambiguous than it would have been. In any event, in some cases, I believe that the “ambiguous provisions” support Morris’s vision and in other cases, I believe they are opposed to it.

The most interesting question here is, what should be the interpretive result if Treanor’s account of Morris’s changes is correct? In my view, we should look to the constitutional text that was enacted, not to the intent underlying the earlier version of the constitution.

The Ratification Conventions, which were needed to enact the Constitution, only saw the text and only voted upon it. Moreover, both the Philadelphia Convention and the Ratifiers would have agreed that the interpretive rule at the time was not to look at what the Philadelphia Convention had intended (especially behind the secrecy of its proceedings). Thus, no one would have believed that the former intent of the Philadelphia Convention was relevant to its interpretation.

So how could the Convention have avoided Morris allegedly pulling a fast one? They could have examined the text of the Constitution that he produced very carefully. There is nothing odd about that. In fact, today when textual changes are made to a legal document, lawyers typically do that. And I would assume that the Convention did the same thing.

It is possible that they failed to do so because they were tied and sought to leave Philadelphia. And that would be regrettable, but no different than the Convention’s failure to include a Bill of Rights in the Constitution for the same reason.

At Dorf on Law, Michael Dorf has an interesting long post on the Supreme Court's recent statutory decision in Jam v. International Finance Corporation: Did Jam v. IFC Kill Purposivism? As he summarizes the case:

Jam v. Int'l Finance Corp is a lawsuit by Indian citizens against an international organization alleging that the latter's lax supervision of its loan led to catastrophic environmental harm. IFC invoked the International Organizations Immunities Act, (IOIA) which grants international organizations the “same immunity from suit . . . as is enjoyed by foreign governments.” When the IOIA was enacted in 1945, foreign governments enjoyed essentially absolute immunity, but today they do not. The question posed by Jam was whether the IOIA should be interpreted statically--so that IFC would have the same immunity that foreign governments enjoyed in 1945--or dynamically--so that IFC would have the same immunity that foreign governments enjoy now.

And on the opinions:

The majority opinion of Chief Justice Roberts in Jam sounds in textualism. Here is the key analytical move:

The language of the IOIA more naturally lends itself to [a dynamic] reading. In granting international organizations the “same immunity” from suit “as is enjoyed by foreign governments,” the Act seems to continuously link the immunity of international organizations to that of foreign governments, so as to ensure ongoing parity between the two. The statute could otherwise have simply stated that international organizations “shall enjoy absolute immunity from suit,” or specified some other fixed level of immunity. Other provisions of the IOIA, such as the one making the property and assets of international organizations “immune from search,” use such noncomparative language to define immunities in a static way. 22 U. S. C. §288a(c). Or the statute could have specified that it was incorporating the law of foreign sovereign immunity as it existed on a particular date.

The opinion goes on to cite a fair number of other examples of other statutes and cases to establish something like a working presumption that "same" language implies dynamic rather than static reference.

...

Justice Breyer's dissent contains several expressions of both a critique of textualism and a brief for purposivim. He says: "It is purpose, not linguistics, that can help us here." Then later, he decries what he regards as the majority's single-minded focus on text and narrow conception of relevant context: "all interpretive roads here lead us to the same place, namely, to context, to history, to purpose, and to consequences. Language alone cannot resolve the statute’s linguistic ambiguity." Justice Breyer concludes with a paean to purposivism that, given the solo nature of his dissent, has an elegiac quality. He writes:

Purposes, derived from context, informed by history, and tested by recognition of related consequences, will more often lead us to legally sound, workable interpretations—as they have consistently done in the past. These methods of interpretation can help voters hold officials accountable for their decisions and permit citizens of our diverse democracy to live together productively and in peace—basic objectives in America of the rule of law itself.

Professor Dorf comments:

Textualism arose chiefly as an attack on promiscuous and undisciplined resort to legislative history, that is, as an attack on intentionalism rather than purposivism. It's true that some purposivists (including Justice Breyer) think that legislative history still has a role to play in statutory interpretation, but these days they rarely cite the sort of material to which early textualism so vociferously objected--floor statements and committee reports.

To be sure, Justice Breyer is an exception. He cites legislative history frequently. But as his dissent in Jam illustrates, he does so as a purposivist--a judge interested in giving practical effect to a statute's purposes--rather than as an intentionalist--a judge seeking to uncover what the legislature thought or would have thought about the precise facts before the court. Thus, he relies on Senate and House reports on the IOIA for such anodyne propositions as the claim that the statute aimed to “satisfy in full the requirements of . . . international organizations conducting activities in the United States.” One could just as well infer that purpose from the text of the IOIA.

Even if one reads the majority opinion in Jam as categorically and forever ruling out the use of legislative history, it is hard to imagine that reading having practical consequences in many cases. One can be a purposivist pretty effectively just by inferring purposes from a statute's text and context.

All this sounds right, and a further thought is that this shows (again) the dominance of statutory originalism in modern legal analysis (though not by that name). The majority and dissent in Jam agree that the central question is what the IOIA meant on immunity when it was enacted. They disagree on how to conduct that inquiry. That is a dispute within the broader idea of what would be called originalism if it were the Constitution instead of a statute that was under consideration.

... Some have rejected the law execution interpretation of the Executive Power Clause because they think it renders the President a limp dishrag. Certainly Chief Justice Vinson's Youngstown dissent rejected the historical interpretation on the ground that it would render the President an "impotent" "automaton" or "messenger-boy." And the arch-royalist Filmer echoes loudly in Harvey Mansfield's suggestion that "if any real president confined himself to this definition, he would be contemptuously called an 'errand boy'...a mere agent whose duty is to command actions according to the law."

These objections to "mere" execution fail to appreciate the importance of the clause. Certainly they underrate the power of law execution today, when the statutory framework entrusts the President with a staggering array of discretionary policy power. But more relevantly for the historical question, they underrate the clause's centrality in the eighteenth century as well. In fact, the problem targeted by the Executive Power Clause might have been the most important motivation for drafting the Constitution in the first place. Future work will explore the point in detail, but the bottom line is that the Founders were desperate for a more effective force to implement national projects and prohibitions.

Their anxieties on this score reflected one of the oldest problems of governance design. The treatise known as Bracton taught centuries of English lawyers that "it is of no use to make laws, unless there is some one to maintain them." The great jurist Coke intoned that "the life and strength of the Laws, consisteth in the execution of them: For in vaine are just lawes Inacted, if not justly executed." Writers competed to make the point most vividly, with analogies ranging from military force ("a sword made of Parchment and Paper in his Laws") to the human body ("the will which determines the act" and "the strength which executes it") to astrology (bodies in the "solar system" of governance "are attended with satellites of executive power") to musical instruments ("Lawes without execution, be no more profitable, then belles without clappers").

The Founders couldn't have agreed more, not least because of what they learned from the slow motion catastrophe known as the Articles of Confederation. You don't have to dig any deeper than the records of the Constitutional Convention to find Gouverneur Morris saying that "the efficacy & utility of the Union" would "depend" on "the due formation" of "the establishment of the executive." The Article II solution to the execution problem was no afterthought. In some ways, it was the crux of the whole settlement.

So don't be too quick to think the law execution theory minimizes presidential authority. The executive power has never been anything less than the nation's force mustered in service of the nation's will. Once it was vested in a single magistrate, and once that magistrate was given a veto to influence the content of his legislative instructions, the result was a massively powerful institution. Just not one with a free-floating foreign affairs power, or indeed any other authority not specifically listed elsewhere in the constitutional text.

This Article analyzes the tension between originalism and precedent in a politically and morally fraught context: the Eighth Amendment. By the time Justice Scalia joined the Supreme Court in 1987, the jurisprudence in this area, particularly with respect to the death penalty, had swollen into a thicket of precedents. And in an important sense, all of these precedents claimed Trop [v. Dulles] as their distant, or not-so-distant, ancestor. How is an originalist to reconcile the conflicting demands of the Constitution on the one hand and these precedents on the other? Justice Scalia’s contention that the Eighth Amendment forecloses only those modes of punishment considered cruel and unusual in 1791 complicates the question. Consider that punishment practices in 1791 were often barbaric when viewed from the predominant modern perspective. When confronted with the choice between the original meaning of the Constitution and a clearly erroneous precedent that better aligns the Constitution with the moral tenor of the times, which is an originalist judge to choose?

Academics critical of originalism as an interpretative methodology have long focused on the inability of originalism to account for, let alone justify, deeply entrenched, but dubiously originalist precedents, such as the Legal Tender Cases, International Shoe Company v. Washington, a litany of New Deal cases, and, most significantly, Brown v. Board of Education. Justice Scalia’s willingness to defer to these precedents highlighted, for these scholars, the opportunism of his originalism, the way it provided “rule of law” cover for the promotion of a conservative political agenda. Curiously, several scholars sympathetic to an originalist methodology have also criticized Justice Scalia’s jurisprudence in this regard. Nelson Lund and Randy Barnett have attacked what they regard as his inconsistency in stridently adhering to the Constitution’s meaning in some cases and then humbly deferring to nonoriginalist precedents in others—with scarcely an explanation of why some precedents deserve respect and others should be overruled.

In a lecture delivered in 1988, Justice Scalia invited precisely this criticism, by implying that (in an Eighth Amendment context) he was only a “faint-hearted originalist.” This concession would become, over the next three decades, Exhibit A in any prosecution of Justice Scalia for inconsistency and hypocrisy. Seldom noted, however, is that after making this concession, Justice Scalia seemed to withdraw or, at a minimum, qualify it. At least in Justice Scalia’s own mind, he was not so much a “faint-hearted originalist” as a judge who ordinarily could reconcile the demands of the Constitution with even unprincipled nonoriginalist decisions, such as Trop. He wrote:

The vast majority of my dissents from nonoriginalist thinking (and I hope at least some of those dissents will be majorities) will, I am sure, be able to be framed in the terms that, even if the provision in question has an evolutionary content, there is inadequate indication that any evolution in social attitudes has occurred.

In other words, Justice Scalia argued that, at least in the context of the Eighth Amendment, he often could accept even the grotesquely nonoriginalist Trop as good law (that is, he could accept for the sake of argument that the Eighth Amendment has evolutionary content) and still prevail in upholding the Constitution’s meaning. Thus, he suggested that he was a “pure-originalist[]-accepting-for-the-sake-of-argument-evolutionary content.”

This Article is the first to use this framework to consider Justice Scalia’s Eighth Amendment jurisprudence. Justice Scalia anticipated that his opinions would be framed as arguments in the alternative: first, that the Eighth Amendment, properly understood, did not foreclose a punishment; and, in the alternative, that even if nonorginalist precedents were followed, the result would be the same, because there was “inadequate indication that any evolution in social attitudes has occurred.” “Sake-of-argument originalism” was Justice Scalia’s ingenious solution to the “dilemma of constitutional originalism,” at least in the area of the Eighth Amendment. The dilemma could be resolved by seamlessly reconciling originalism and precedent. Given this Article’s title, there is no spoiler alert needed before announcing that this solution failed—both objectively and by Justice Scalia’s own estimation. This Article illustrates why and what lessons might be drawn, particularly for those sympathetic to an originalist methodology.

Also in the issue: Essays from the Thirty-Seventh Annual Federalist Society National Student Symposium, with contributions from Clint Bolick, Randy Barnett, Lee Strang, Kurt Lash, Edward Whelan, John Mikhail, John Yoo and John McGinnis.

“Sanctuary cities” - jurisdictions that refuse to assist federal government attempts to deport undocumented immigrants - have become a major focus of political conflict over immigration policy. The Trump administration’s efforts to punish sanctuary jurisdictions have led to multiple legal battles over constitutional federalism.

The administration’s crackdown on sanctuary jurisdictions has helped make federalism great again. It achieved this unintended outcome by generating a series of court decisions protecting state and local governments against federal coercion, and by leading many on the political left to take a more favorable view of judicial enforcement of constitutional limits on federal power.

This is the first academic article to attempt a comprehensive evaluation of the federalism issues at stake in the Trump-era litigation on sanctuary cities. The article assesses the three main sets of sanctuary cases that have arisen during the Trump administration: legal challenges to Trump’s January 2017 executive order targeting sanctuary cities, challenges to the Justice Department’s July 2017 policy of conditioning federal law enforcement grants on state and local government cooperation with efforts to deport undocumented immigrants, and the administration’s lawsuit against California’s “sanctuary state” law. So far, at least, all three have led to notable victories for advocates of constitutional limits on federal power.

The sanctuary litigation has also produced a noteworthy reversal of the usual ideological valence of judicial enforcement of federalism, with progressive “blue” jurisdictions relying on legal doctrines traditionally associated with the political right. Whether this helps trigger a more lasting shift in attitudes towards federalism remains to be seen.

03/07/2019

Do you think the different canons of statutory construction can/should also be applied to constitutional provisions? If so would the "reference canon" as recently used by the Supreme Court in Jam v. International Finance Corp. be a reason to actually read incorporation, whether by the Due Process Clause or the Privileges or Immunities Clause, as coextensive with the amendment/right it references at the time of the claim rather than the time of ratification? That is, the 14th amendment is a general reference to the body of law rather than a specific reference to a provision. I don't know when the canon came into force but the opinion did cite an 1890 state case so it seems like a strong possibility is was known at the time of ratification.

I know in one of your posts you said you believe we should look in reference to 1868 rather than 1791 but it seems strange to imagine the latter ratifiers understood it to mean that the right against the States would/could differ from against the federal government. This would provide the answer on originalist/textualist grounds of why it is coextensive; it's because that was the actual meaning of the 14th amendment.

I think this is a possibility well worth considering. (And it would make originalism in regard to the Fourteenth Amendment a lot easier).

The preamble to the United States Constitution is something that is widely employed within political and theoretical arguments but is virtually never relied upon in court cases interpreting the Constitution. Is this treatment correct under the Constitution’s original meaning?

The preamble provides that “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

This stirring language is well known by the public but has rarely been used in constitutional argument. Its main use is to support popular sovereignty (“We the People”) and to support the claim that the people of the nation rather than the states are sovereign (“We the People of the United States”). Some people challenge this practice, while others defend it. I defend something of a middle position.

There are three main positions one can have about the preamble:

The preamble is a source of power for the national government. Under this view, Congress has the power to, for example, promote the general welfare and to insure domestic tranquility. The enumerated powers are thus supplemented by the preamble.

The preamble is simply symbolic language that has no function. It is philosophical language that states the purpose of the Constitution, but it should not be used when interpreting the Constitution. This position seems in practice to be the one that the courts employ since they almost never refer to the preamble when interpreting the Constitution.

The preamble has a significant, but limited function. It states the purposes of the Constitution and therefore should be used to resolve ambiguity in constitutional provisions, but not as an independent source of power.

In my view, this last position is the correct one. At the time of the Constitution, preambles to statutes were understood to have this function. They were not independent sources of power but could be employed to resolve ambiguity. They have the same function within the Constitution and should be employed in that manner.

My position suggests that Congress is limited to the enumerated powers. But that when we interpret those powers, we can use the preamble to discover the purposes of the Constitution and therefore to resolve ambiguities within the constitutional language by reference to those purposes.

Under this view, then, one might expect frequent reference to the preamble in constitutional interpretation. Yet, one rarely sees this, even in originalist writings. This might seem to be problematic, but there is a possible justification for this failure to reference the preamble. It is not often that the preamble will actually help resolve an interpretive uncertainty. For example, the purpose of promoting a more perfect union does not tell us how far towards union one ought to move. It is simply a more secure and greater union than the Articles of Confederation provided. Similarly, the term “general welfare” is often unhelpful, because it too requires interpretation to know what the general welfare is.

One can imagine situations where the preamble helps. For example, one might argue that state sovereign immunity would work an injustice to someone who is owed money by the state. Thus, Justice Wilson in Chisholm v. Georgia properly invoked the establish justice language when interpreting Article III in a case involving a contract claim against Georgia. So sometimes the preamble is applicable, even though it is rarely invoked.

[The following response to this post is from occasional guest-blogger David E. Weisberg. -- Ed.]

If the House impeaches President Trump, would the Senate be constitutionally obligated to hold a trial, or would it be constitutionally permissible for the Senate simply to do nothing? Prof. Bauer argues that the Senate has an affirmative obligation, and in this he is joined by Prof. Tribe, who asserts that the obligation arises from the "structure, history, function, and logic of the impeachment Power, not from any mandating language." They both cite the failure to consider Merrick Garland's Supreme Court nomination as an unhappy example of the Senate refusing to fulfill an obligation that is implied, albeit not explicitly mandated, by the Constitution. My opinion, as a constitutional textualist, is that the Senate did indeed have an affirmative duty implied under the Constitution to consider Garland's nomination, but it would have no duty, express or implied, to try articles of impeachment.

The president has the power to nominate and appoint Justices "by and with the Advice and Consent of the Senate," but the Constitution is silent as to whether, or when, the Senate is obligated to advise and consent. Nevertheless, the structure of government outlined in the Constitution does indeed create an implied obligation for senatorial action within a reasonable time. If the Garland precedent is followed by all future Senates, it is conceivable--not likely as a matter of fact, but nevertheless conceivable in theory--that the last Justice will die or retire without anyone left to exercise Article III judicial power. That is, if all future nominations to the Court are made by a president whose political party does not control the Senate, and those future Senates all follow the Garland precedent, none of those nominations will even be considered, and the last Justice will have no successors.

It might be argued that the foregoing "structural" argument is flawed, because a Senate controlled by one party certainly has the right to consider and then emphatically reject every nominee proposed by a president of a different party. So, the last Justice might still be left without any successor, even if the Senate promptly considers every nominee. This counter-argument, however, is itself flawed. The truth is that the Senate refused to consider the Garland nomination precisely because Republican leaders feared that, if it were considered, it would have been approved rather than rejected. Thus, the Garland precedent, if followed strictly in the future, makes it more likely that the judicial branch could be left without any officers.

The impeachment question is entirely distinguishable. Our constitutional structure of government would not even conceivably be hamstrung or disrupted if the Senate ignores articles of impeachment. All the branches of government could continue to function as usual; there is no threat that, if future Senates follow the precedent of ignoring articles of impeachment, one of the branches of government might be left with no officers. Moreover, if, e.g., a Republican-controlled Senate were to refuse to take up articles of impeachment adopted by a Democratic-controlled House, the political consequences of that refusal would be indistinguishable from those that would follow if the same Senate considered and then rejected articles of impeachment. Critics would be free to say that the Republicans were acting from purely political motives in either case--that is, whether they ignored the articles or voted to reject them--and voters would be free to decide how the Senate's action affects their own votes.

Some suggest that the senatorial precedent of invariably taking up articles of impeachment (if that in fact is the history) has by now created an obligation that the Senate do so in all future cases. Obligations do not arise in that way--all of us have done certain things in certain ways over many years, and perhaps over our entire lifetimes. It does not follow that we are "obligated" to continue to do those things in just those ways forever. Powers exercised repeatedly do not, in and of themselves, create obligations.

Because the impeached officer is "tried" in the Senate, does the Senate play a judicial role, and in that role does it have a judge-like duty to try the case? I think not. First, if the Senate never takes up the articles of impeachment, the analogy suggests that there is no "case" before the Senate at all. Secondly, when the president is tried, the Chief Justice presides over the Senate. Thus, if a trial in the Senate is likened to a civil or criminal trial, it would seem that the Chief Justice is the judge and the Senators are jurors. Do jurors have an obligation to ensure that the trial proceeds? No. Is it conceivable that, if articles of impeachment were ignored by the Senate, the Chief Justice would order the Senate to conduct a trial? I hope the answer is "no", because who would enforce the Chief Justice's order if the Senate ignores it too? Would the president act to ensure the commencement of a trial that could result in removing him or her from office? Let's not go there.

When the Founders agreed that "[t]he executive Power shall be vested in a President of the United States of America," the core phrase had a single, simple, and uncontested meaning. The executive power meant the power to execute the laws. Period.

For the uninitiated, this conclusion may seem obvious on its face. Yet Gary Lawson has rightly called it "one of the most important questions of any kind, on any subject, under the Federal Constitution." And originalists are currently getting the answer wrong.

Let's start with some background. Basically, the Executive Power Clause has three competing interpretations.

1. The cross-reference thesis. On this view, the clause has no standalone content. It simply refers to the more specific powers listed later in Article II.

2. The law execution thesis. On this understanding, the clause grants exactly what its grammar suggests: the power to execute the laws.

3. The royal residuum thesis. This view reads the clause to include all of the powers typically held by an eighteenth-century executive—particularly those relating to foreign affairs and national security—unless specifically revised or reallocated elsewhere in the Constitution.

The royal residuum thesis has enormous consequences. In its least aggressive form, it reads the Executive Power Clause as conveying a defeasible authorization to do what's necessary in the realm of foreign affairs and national security, except where either the Constitution or some specific statute forbids it. In its most aggressive form, the residuum thesis reads that authority as indefeasible. In other words, if some power was inherent to the eighteenth-century British Crown, nothing short of pretty clear constitutional text can stop the President from doing it. Both versions of the residuum thesis yield a strong interpretive presumption in favor of presidential power wherever either the Constitution or any given statute is ambiguous.

By this taxonomy, I guess I'm a less-aggressive royal residuum-ist (per this article with Saikrishna Prakash, this followup, and Chapters 3-6 of The Constitution's Text in Foreign Affairs). Except I think it not accurate to say that this view "reads the Executive Power Clause as conveying a defeasible authorization to do what's necessary in the realm of foreign affairs and national security." Professor Prakash and I are clear on the limits of our executive power thesis, and it's not remotely the idea that the President can "do what's necessary" in foreign affairs and (especially) national security. Rather, it's the idea that the executive power includes -- in addition to law execution -- the diplomatic and military aspects of foreign relations (except where the Constitution gives the power to another branch). The foreign affairs power (in our view) does not convey domestic powers, and especially not lawmaking powers. It would be nice if Professor Mortenson made that clear.

As a historical matter, what did the Executive Power Clause vest in the President? If Justice Scalia's District of Columbia v. Heller opinion is any guide, originalists looking for the eighteenth-century meaning of such terms should start with contemporary dictionaries. Heller cites two. One doesn't help much with the meaning of executive power. But here is Samuel Johnson's first definition of "executive": "Having the quality of executing or performing. They are the nimblest, agil, strongest instruments, fittest to be executive of the commands of the souls. Hale."

If that's what "executive" means, then the law execution understanding of the Executive Power Clause is plainly correct. (See yesterday's post for a primer on the competing claims about the meaning of the clause.) The executive power is the authority to "execut[e] or perform[]" someone else's "commands" as their "instrument[]." That leaves the clause with no grammatically plausible hook for an inherent substantive authority over foreign affairs or national security policy.

You might wonder whether other dictionaries told a different story. Well, the article prompting these posts examines more than a hundred. (This part of the research was not exactly scintillating.) Every definition I found is in accord. In fact, the closer to the constitutional context they get, the clearer the point. In governance, the object of execution is the laws, such that "executive" is often defined as "having the quality of executing or performing. Active; having the power to put in act the laws." And the source of that command was the legislative process, such that a number of dictionaries extend the core definition by going on to specify: "Active, or putting into execution, opposed to deliberative or legislative."

And further:

A serious effort to reconstruct historical meaning of course requires a lot more than dictionaries. And so the article is mainly concerned with exploring the background literature: legal treatises, political theory, polemical commentary, and the records of judicial and legislative deliberations. If anything, this material cuts even more decisively in favor of the law execution thesis. As explained both in the article and in a Lawfare post almost five years ago, Blackstone's treatise is typical of the era in describing legislative power and executive power as two steps in a logical sequence. If the "legislative ... authority" was "the right ... of making ... the laws," he explained, then the "executive authority" was simply the corresponding "right ... of enforcing the laws."

As usual, Blackstone was just restating conventional wisdom. Locke similarly described "the legislative power" ("a right to direct how the force of the common-wealth shall be employed") as a logical predicate to "the executive power" ("see[ing] to the execution of the laws that are made, and remain in force"). Sidney said "the legislative … power … is exercised in making laws," and "the executive power … is exercised … in judging controversies according to such as are made." Even Filmer—the greatest theorist of royal absolutism, and the fourth author listed in the "Politics" section of Madison's 1783 library list—described executive power as "a power of putting th[e] laws in execution by judging and punishing offenders." As Filmer saw things, subjecting the King to statutory authority means that he is "brought from the legislative to executive power only." There's lots and lots more where this came from, and it's all to the same effect.

Agreed, executive power clearly had the meaning Professor Mortenson recounts. One hopes this will be the end of what he calls the "cross-reference" theory, if it had not already been disproved by prior articles by Steven Calabresi and Saikrishna Prakash.

03/05/2019

Does the Senate have an obligation to conduct a trial of the president if the House impeaches him? With the increased prospects for an impeachment inquiry now that the Democrats have taken control of the House of Representatives, most discussions of impeachment have assumed that, should the House vote to impeachment, the Senate will then hold a trial. This is the logical construction of the Constitution’s provisions setting out the impeachment process: If the House impeaches, then it would follow that the Senate tries the case. This is what the Senate did on the two occasions, in the cases of Andrew Johnson and Bill Clinton, that the House voted articles of impeachment.

And from further along:

But it is also possible that, in this time of disregard and erosion of established institutional practices and norms, the current leadership of the Senate could choose to abrogate them once more. The same Mitch McConnell who blocked the Senate’s exercise of its authority to advise and consent to the Supreme Court nomination of Merrick Garland, could attempt to prevent the trial of a House impeachment of Donald Trump. And he would not have to look far to find the constitutional arguments and the flexibility to revise Senate rules and procedures to accomplish this purpose.

The Constitution does not by its express terms direct the Senate to try an impeachment. In fact, it confers on the Senate "the sole power to try,” which is a conferral of exclusive constitutional authority and not a procedural command. The Constitution couches the power to impeach in the same terms: it is the House’s “sole power.” The House may choose to impeach or not, and one can imagine an argument that the Senate is just as free, in the exercise of its own “sole power,” to decline to try any impeachment that the House elects to vote.

Sounds like a good textual argument to me. The post counters with Laurence Tribe:

Professor Laurence Tribe has argued that the Senate retains a clear constitutional “duty” to proceed with a trial. He grounds that obligation in the "structure, history, function, and logic of the impeachment Power, not from any mandating language." On this we agree: the Senate does have this duty to try any impeachment voted by the House. The individual senators would violate their oath in altogether ignoring the House’s constitutional judgment that the president, having committed impeachable offenses, is unfit to retain the office. For the Senate and a majority to adopt this course is wrong and dangerous.

It might be wrong and dangerous but that does not make it unconstitutional. And the oath argument does not seem to have much traction if the individual Senators think the impeachment is a political stunt without foundation.

I thought the Senate had no duty to formally consider the Garland nomination, as a result of a lack of any duty being specified in the text. So I'm sympathetic to a "no" answer here too. But there might be at least two distinctions. First, the practice might be stronger. The post mentions two presidential impeachments, but what about judicial impeachments? Has the Senate ever refuse to try? (I guess no). There remains the difficulty of whether an affirmative constitutional duty can be created by practice, though. A second possible distinction is textual. The reference to "try[ing]" impeachments evokes a judicial role. Judges have no power to refuse to try cases brought to them (although they can dispose of them summarily). If we think of the Senate in a judicial role, perhaps a judge-like duty to try attaches.

This Essay contends that textualist interpretation – by which it means the search for the most likely public meaning of the words of a statute – in inconsistent with Congress’s responsibility for the substance of the law that it enacts. The textualist assertion to the contrary, that it is the text of the statute that is voted into law, fails to comprehend that the language of the statute is merely a means by which the legislature communicates what it intends the law to be. Therefore, this Essay responds to the textualist belief that the text of the statute is the reification of the law by arguing that the law should be what the legislators who voted for it understood the words of the statute to mean. This Essay further explains why it is not reasonable, or even possible, to expect legislators to determine the meaning of the words they enact using the tools of textualist judges. Hence, it argues that textualists cannot rely on the fact that words have an objective best meaning of which the legislature should be aware to support their contention that the law should be the most likely public meaning of the statutory text. The Essay then concludes by considering some implications that the theoretical bankruptcy of textualism should have for judicial statutory interpretation.

If you accept this argument, would that not also apply to the Constitution?

03/03/2019

William Baude (University of Chicago Law School) has posted Ex Parte Levitt (Texas Law Review, Vol. 98, 2019) (31 pages) on SSRN. Here is the abstract:

In Ex Parte Levitt, the Supreme Court denied standing to a pro se litigant making esoteric claims against the appointment of Justice Hugo Black. The Court’s short opinion is now an unremarkable mainstay of modern federal courts doctrine. But the case merits closer examination. Indeed, Levitt’s challenge was probably meritorious, and Hugo Black’s appointment unconstitutional. Moreover, the Court’s standing analysis was probably wrong – though there might have been other reasons to deny the challenge. And finally, the case’s aftermath raises intriguing questions about the Supreme Court’s role in politics and constitutional law.

Constitutional law scholars tend to focus on decisions involving abortion, same-sex marriage, desegregation, and administrative law, ignoring one of the 20th century’s most contentious legal battles: creditors’ challenge to President Franklin D. Roosevelt’s abrogation of the gold standard, and contemporaneous invalidation of “gold clauses” in contractual debt obligations, in 1933. The New Deal spawned many events of interest to constitutional historians—such as FDR’s court-packing scheme, the abandonment of the Lochner line of cases, and the Carolene Products decision—but until the publication of Sebastian Edwards’s American Default in 2018, the great debt default of 1933-1935 had unaccountably been largely overlooked. [1] In the pre-“woke” era, constitutional battles were over economics, not culture, and no aspect of the economy is more fundamental than money.

In response to the Great Depression, one of Roosevelt’s first acts as President, after taking office in March 1933, was to ban the private ownership of gold—in the form of coins, bullion, or gold certificates—and to require all private gold holdings to be sold to the federal government at a set price. This unprecedented edict was quickly followed by taking the nation off the gold standard. Then, on June 5, 1933, at FDR’s behest Congress passed Joint Resolution No. 10, unilaterally annulling all “gold clauses”—contractual provisions requiring repayment of debts in gold, used in most bonds and mortgages since the Civil War to protect lenders against devaluation of paper money—in all past and future debt contracts, public and private. As the coup de grace, in January 1934, FDR devalued the currency by fixing a new price for gold almost 70 percent higher than its century-old price.

And:

Bond holders who had purchased securities protected by gold clauses challenged the annulment as unconstitutional. This became one of the first skirmishes over the New Deal to be decided by the Supreme Court. In early 1935, following three days of argument, in a trio of related decisions the Court upheld the federal government’s actions in a series of 5-4 decisions written by Chief Justice Charles Evan Hughes, with the conservative “Four Horsemen” dissenting.

The majority blithely upheld the Joint Resolution invalidating gold clauses in private contracts, citing broad congressional power to regulate the economy and, with respect to the impairment of government obligations, denying that bond holders had been damaged by the taking. The rationale of Hughes’s opinion in the public debt cases was that annulment of the gold clause caused no economic injury to the bondholders because—even had the debt been repaid in gold coin—other features of FDR’s monetary reforms would have required that the gold be surrendered at a fixed price (less than actual market value). The dissenters, who viewed FDR’s scheme as an abhorrent and dishonorable repudiation of contractual obligations, scoffed at this reasoning: “Obligations cannot be legally avoided by prohibiting the creditor from receiving the thing promised.” Justice James Clark McReynolds delivered the unitary dissent, departing from the prepared opinion to scornfully declare that the Constitution “is gone,” bitterly lamenting that “Shame and humiliation are upon us now.”

Unfortunately, the review concludes, the book does not present much detailed legal analysis:

How well does the book, subtitled The Untold Story of FDR, the Supreme Court, and the Battle Over Gold, hold up as legal history or constitutional analysis? We have become inured to fiat currency and monetary gimmicks on the part of the Federal Reserve, but are these innovations consistent with an originalist understanding of the Constitution? What did the Framers mean when granting to Congress the power to “coin money [and] regulate the value thereof”? Were FDR’s reforms within the purview of the Constitution’s “necessary and proper” clause? Were the Reconstruction-era Legal Tender Cases correctly decided? These questions deserve comprehensive treatment. That argument isn’t contained in Edwards’ book. In contrast to Edwards’ economic analysis, his legal narrative is somewhat superficial, derived in large part from contemporaneous accounts, some historical archives, and William Leuchtenberg’s 1995 book The FDR Years: On Roosevelt and His Legacy, which he describes as “the standard work on the Supreme Court during the time of Roosevelt.”

Edwards acknowledges that the statutory authority for declaring a national bank holiday was “doubtful,” and notes that acting Treasury Secretary Dean Acheson resigned his post because of his concerns that the administration’s policies were illegal. Beyond this, his largely journalistic rendition of the Supreme Court litigation is informative and may satisfy a general audience, but does not break new ground as legal scholarship. In fairness, this was not the author’s intent; yet, an account of the Gold Clause Cases is incomplete without a reckoning of the larger constitutional questions.

03/01/2019

At Volokh Conspiracy, Michael McConnell (Stanford) has a long guest post on the Maryland cross case (American Legion v. American Humanist Association) and the meaning of an Establishment of Religion: "Cleaning Up the Lemon Mess". From the core of the argument:

... [T]he amicus brief I filed on behalf of the Becket Fund ... argues that the Court should adopt a historical approach. Under this approach, the question is not whether the government is "endorsing," "coercing," or "proselytizing" in matters of religion. The question is whether the government's actions share the characteristics of "an establishment of religion" at the time of the founding. After yesterday's argument, I'm more convinced than ever that a historical approach offers the best way out of the Lemon mess.

Under a historical approach, the first question is what constituted "an establishment of religion" at the time of the founding. This is not a difficult question to answer, as nine of the thirteen colonies had an establishment. These establishments shared six characteristics: (1) government control over the doctrine and personnel of the established church; (2) mandatory attendance in the established church; (3) government financial support of the established church; (4) restrictions on worship in dissenting churches; (5) restrictions on political participation by dissenters; and (6) use of the established church to carry out civil functions. In applying this approach, the burden of proof is not on the government to show that the First Congress or the colonies engaged in the exact same practice. Rather, the burden is on the plaintiffs to show that the government's conduct shares the historic characteristics of an establishment.

The historical test includes coercion, because so much of the historic establishment of religion was coercive. But it is far more textured than merely a coercion test. It includes government action that favors one religion over another, that involves the government in doctrinal or ecclesiological issues, that invests religious bodies with political power, and much more. In short, an historical approach is bounded and objectively administrable, but not as narrow as "coercion" or as subjective as "endorsement."

... This approach yields a clear result in the Maryland Peace Cross case: displaying the cross is constitutional. The government is not controlling religious doctrine, compelling religious observance, sending money to a religious organization, or punishing dissenting worship. It is simply using a religious symbol to memorialize fallen soldiers—a practice that is consistent with the "unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789." Lynch v. Donnelly, 465 U.S. 668, 674 (1984).

Our founders made every attempt to be religiously inclusive (within the demographic range of the day), but they did not regard the use of religious terminology or religious symbolism in the ordinary course of civic events as presenting an "establishment" issue. For example, a committee including Benjamin Franklin and Thomas Jefferson, tasked with designing a national seal, proposed an image of Moses and the Israelites crossing the Red Sea with the words "Rebellion to Tyrants Is Obedience to God." The national motto, the national anthem, and even the words with which Supreme Court hearings are begun contain religious references. Use of a cross to memorialize the war dead is not much different.

That sounds right, from an originalist perspective, with these amplifications: The founding generation probably had a definite idea of what constituted an establishment. "Establishment of religion" does not seem like one of those phrases that arguably could be intended as an open-ended, evolutionary concept, or a general principle that could mean many things to many people (even assuming that there are such phrases elsewhere in the Constitution). If that's so, there seems a strong argument for using the founding generation's definite meaning. Otherwise, it's hard to see what the Court is doing as anything other than rewriting the Constitution. The fact that "establishment of religion" does not have an obvious meaning today, apart from whatever its constitutional meaning is, shouldn't change the fact (if it is a fact) that the framers had a definite meaning. And if that definite meaning did not include putting up memorial crosses, should that not be an end to the matter (precedent aside, of course), in the same way that the Constitution's definite statement that each state shall have two senators resolves the number of senators a state may have?

Of course, this depends on Professor McConnell being right about the clause's definite meaning.

(And, I can't help adding, shouldn't we be talking about the framers of the Fourteenth Amendment, as this is a claimed limitation on a local activity? Originalism really needs a theory about what to do in this situation.)

Corpus linguistics can be a powerful tool in legal interpretation, but like all tools, it is suited for some uses but not for others. At a minimum, that means that there are likely to be cases in which corpus data doesn’t yield any useful insights. More seriously, in some cases where the data seems useful, that appearance might prove on closer examination to be misleading. So it is important for people to be able to distinguish issues as to which corpus results are genuinely useful from those in which they are not. A big part of the motivation behind introducing corpus linguistics into legal interpretation is to increase the sophistication and quality of interpretive analysis. That purpose will be disserved corpus data is cited in support of conclusions that the data doesn’t really support.

This paper is an initial attempt to deal with problem of distinguishing uses of corpus linguistics that can yield useful data from those that cannot. In particular, the paper addresses a criticism that has been made of the use of corpus linguistics in legal interpretation — namely, that that the hypothesis underlying the legal-interpretive use of frequency data is flawed. That hypothesis, ac-cording to one of the critics, is that “where an ambiguous term retains two plausible meanings, the ordinary meaning of the term... is the more frequently used meaning[.]” (Although that description is not fully accurate, it will suffice for present purposes.)

The asserted flaw in this hypothesis is that differences in the frequencies of different senses of a word might be due to “reasons that have little to do with the ordinary meaning of that word.” Such differences, rather than reflecting the “sense of a word or phrase that is most likely implicated in a given linguistic context,” might instead reflect at least in part “the prevalence or newsworthiness of the underlying phenomenon that the term denotes.” That argument is referred to in this paper as the Purple-Car Argument, based on a skeptical comment about the use of corpus linguistics in legal interpretation: “If the word ‘car’ is ten times more likely to co-occur with the word ‘red’ than with the word ‘purple,’ it would be ludicrous to conclude from this data that a purple car is not a ‘car.’”

This paper deals with the Purple-Car Argument in two ways. First, it attempts to clarify the argument’s by showing that there are ways of using corpus linguistics that do not involve frequency analysis and that are therefore not even arguably subject to the Purple-Car Argument. The paper offers several case studies illustrating such uses.

Second, the acknowledges that when frequency analysis is in fact used, there will be cases that do implicate the flaw that the Purple-Car Argument identifies. The problem, therefore, is to figure out how to distinguish these Purple-Car cases from cases in which the Purple-Car Argument does not apply. The paper discusses some possible methodologies that might be helpful in making that determination. It then presents three case studies, focusing on cases that are well known to those familiar with the law-and-corpus-linguistics literature: Muscarello v. United States, State v. Rasabout, and People v. Harris. The paper concludes that the Purple-Car Argument does not apply to Muscarello, that it does apply to Rasabout, and that a variant of the argument applies to the dissenting opinion in Harris.

This paper is a much needed corrective to the misunderstandings generated by over-reliance on frequency data (both pro and con) in some of the early law and corpus linguistics work. If you have any interest in the interpretation of legal texts, I urge you to read this paper.

Why does Justice Thomas object to Sullivan? ... Justice Thomas thinks that a state should be allowed to adopt the rules of Sullivan and its progeny in "striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm." However, he would reject Sullivan as a constitutional rule, because he does not think it accurately captures the original understanding of the First Amendment.

That contention is vulnerable on its own terms. As I have argued elsewhere, Justice Thomas sometimes officially professes the lately fashionable version of originalism, according to which courts should give effect to a constitutional provision's original public meaning but not to the concrete expectations or intentions of a provision's framers and ratifiers (except insofar as they shed light on such original public meaning); however, when it comes time to consider a provision's original meaning, Justice Thomas frequently proceeds like an old-style originalist concerned about expectations and intentions. Perhaps a case could be made that the original meaning of "freedom of speech" did not include unintentionally false statements about public officials and public figures, but Justice Thomas does not make that case.

At Balkinization, Marty Lederman makes a similar point at much greater length. Here is part of the argument:

Justice Thomas's mantra of fidelity to "original meaning" appears to be an effort to portray himself as a practitioner of the “New Originalism,” a school of thought that (in theory) has abandoned the old-fashioned, discredited “old originalism” ideas (associated with Robert Bork, et al.) that the Constitution should be interpreted according to the Framers’ intentions or expectations in favor of the idea that “constitutional interpretation is the discovery of the linguistic meaning of the constitutional text.”

For all his talk about original “meaning,” however, in his McKee opinion Justice Thomas never once discusses what the actual semantic meaning (public or otherwise) of the words of the First and Fourteenth Amendments might have been in 1789 and 1868. Indeed, he pays virtually no attention to the text at all. Instead, Thomas’s entire critique consists of describing the common law of libel and defamation when the Amendments (especially the First Amendment) were ratified; apparently applying an (unstated) presumption that the framers didn’t intend or foresee that the Constitution would upend that common law (as Steve Sachs might put it, that they intended to preserve a “constitutional backdrop”—but cf. my discussion at pages 1589-92 here); and then concluding that the "original understanding was that the common law would be unaffected."

It’s not until page 10 of his opinion that Thomas even quotes the text of the Free Speech Clause—and then, instead of trying to discern its “meaning,” he simply invokes with approval Justice White’s dissent in Gertz, which was expressly based upon a view of original “intent,” not textual meaning. (Thomas even goes so far as to emphasize White's argument that “[s]cant, if any, evidence exists that the First Amendment was intended to abolish the common law of libel, at least to the extent of depriving ordinary citizens of meaningful redress against their defamers.”)

Justice Thomas’s opinion, then, is a classic example of “original intent” and “original expected applications” originalism, of the sort the “New Originalism” had, in theory, rejected and interred forever—draped in the garments of the new “original public meaning” originalism.

I think there is some force to these objections, but only some. Several points can be made in response:

1. Essentially everyone agrees that the framers' intentions and expectations, and especially the legal environment in which they wrote, are important clues to original meaning, even while the original meaning remains the ultimate objective of the inquiry. Professor Lederman acknowledges this, and notes a response by originalism theorist Larry Solum:

[Professor Solum] noted that intent and expectations at the time of ratification—as reflected in practices that continued at the time—can provide evidence that’s relevant to what the public meaning of the text might have been.

...

[Professor Solum also noted] that “the common law background may be part of the OPM of the 1A if the phrases ‘freedom of speech’ and ‘freedom of the press’ refer to preexisting legal rights.” In other words, perhaps the phrases “freedom of speech” and “freedom of the press” had specialized meanings at the time that were reflected in the existing state common law doctrines, such that the “freedom” being protected by the First Amendment was merely whatever “freedoms” one had to speak and publish before the Amendment was ratified, i.e., “the freedom of speech circa 1791.”

I agree on both points, and they suggest that at least to some people, there is not so large a gap between original understanding and original meaning. Much evidence that is relevant to original intent is also relevant to original meaning

2. Justice Thomas (and previously Justice Scalia) have indeed embraced the idea that the First Amendment protected a pre-existing right of free speech ("the" freedom of speech). I agree that Justice Thomas could have been more clear on this point in his concurrence, but I think it evident that this is his theory. (He could, of course, be wrong about this, but that does not mean he is not seeking the Amendment's original meaning -- only that he is perhaps not getting it right). Moreover, this is a common approach adopted by Thomas, Scalia and other originalists with respect to other parts of the Bill of Rights, including for example the Second Amendment and criminal procedure provisions such as the confrontation clause. (See here for my discussion of Scalia's approach).

Looking at the common law background to understand the meaning of rights provisions is not really the same as the old-style original intent. As Professor Lederman acknowledges, in quoting Stephen Sachs, it's common for pre-existing legal conditions to give meaning to legal writing. That's different from trying to guess what particular framers would have thought about an issue based on their subjective intentions, which is the most criticized part of the old "original intent" model.

Professor Lederman goes on to argue:

If one were to have asked virtually any person in 1789 whether her “freedom” to “speak” would in any way be “abridged” if she were assessed a financial penalty for criticizing a public figure or official, the answer would almost surely have been “yes, of course,” based simply on the common public meaning of those three words. To be sure, such a person might also have been aware that states at the time exercised the lawful power to do just that—i.e., to assess penalties for defamatory speech of public figures, sometimes even when the speech was truthful. Would that have changed their view of the semantic meaning of the words of the Free Speech Clause? Presumably not: That ubiquitous practice would only have suggested to such a person that the states could lawfully “abridge” their “freedom” to “speak” under certain circumstances (and also, perhaps, that the Constitution was estopping Congress from henceforth doing the same).

Perhaps, but he does not provide any evidence that this is true, and it seems like speculation. Moreover, the originalist question is whether a limit on libel would abridge the freedom of speech. Maybe this means the same as abridging "her freedom to speak" generally, as Professor Lederman says; but maybe instead (as argued above) it refers to abridging a pre-existing natural or common law right which included some speech but not others, and which thus is "abridged" by some speech restrictions but not others. The right question to ask is whether it was commonly believed that laws against libel abridged "the freedom of speech."

My point is not to try to resolve this debate (I'm not a First Amendment scholar), but to point out that both positions are efforts to understand the original meaning. Again, I think Professor Lederman is right that Justice Thomas could have been more clear on this point, but I also think it's clear enough, especially considering other writings, that this is what he meant.

3. It's worth pointing out that Justice Thomas wasn't trying to be definitive; he was simply raising the issue. It had not been argued and so was not before the Court. He was simply saying that in an appropriate case that Sullivan should be reconsidered because (a) the Sullivan Court itself did not justify its conclusion on the basis of original meaning and (b) a quick look at libel law in the founding era suggests that perhaps people did not think it abridged the freedom of speech since no one seemed to have a problem with it (or at least with some versions of it). But Thomas would presumably be open to arguments that either the common understanding of libel law was that it did abridge the freedom of speech or that libel law was subject to certain limits which the First Amendment constitutionalized and which might support the outcome in Sullivan and elsewhere.

4. Professor Dorf makes this point, with which I entirely agree:

Moreover, it is hardly clear why Justice Thomas focuses his McKee opinion on the pre-1791 understanding rather than the pre-1868 understanding. Sullivan and its progeny limit the application of state defamation law, and in doing so they rely on the Fourteenth Amendment's application of the First Amendment to the states, not on the First Amendment itself. Just the day after he wrote in McKee, Justice Thomas concurred separately in Timbs v. Indiana, in which he reiterated his view that the Privileges or Immunities Clause of the Fourteenth Amendment, rather than its Due Process Clause, does the job of incorporating most of the Bill of Rights. Yet whether it's Due Process or Privileges or Immunities that makes a Bill-of-Rights provision applicable to the states, the key date for an originalist should be 1868, not 1791. Perhaps Justice Thomas has some theory of why the earlier meaning nonetheless controls, but if so, he has not shared it with the public.

I bet, though, that the 1868 understanding was not materially different from the 1791 understanding.

5. And finally, look how much interesting academic discussion Justice Thomas has generated. We should celebrate his thoughtful and provocative concurrence, whatever we think of its merits.

Debates about the original meaning of the Establishment Clause are gaining increased attention in light of the Supreme Court’s recent cert grant in The American Legion v. American Humanist Association, a case about government displays of religious symbols. Scholars have long relied on a host of different methodologies to advance various theories about what the Establishment Clause means. But these methods, often relying on isolated historical examples or unrepresentative samples of language, provide limited insights about how language was understood by the greater population during the founding era. And some proponents of various historical interpretations declare that supporters of other theories have cherry-picked sources or misinterpreted them. Corpus linguistics provides another method of revealing important historical information about the Establishment Clause’s original meaning, but in a systematic and data-driven way.

This Article provides the first corpus linguistics analysis of the Establishment Clause, using the tools of a corpus and a sufficiently large and representative body of data drawn from the relevant time period to provide additional information about probable founding-era meaning. This Article does not discount other methodologies or claim to definitively prove the meaning of the Establishment Clause. But this Article does add a piece to the Establishment Clause puzzle, providing information about the most salient characteristics of an established religion, or in other words, those characteristics implicated most often (or not at all) in founding era mentions of established religion. This Article also provides a more rigorous and transparent method for investigating original public meaning than has been employed by other scholars. And by sifting through hundreds of results discussing establishment in a religious context, our Article is able to bring to light new historical sources that have been previously overlooked.

This Article’s findings indicate that by far the most common characteristic discussed in the context of an establishment of religion involved legal or official designation of a specific church or faith. Beyond that, the most common characteristics of an establishment of religion involved (1) government coercion of individuals involving prohibitions or mandates on religious practices enforced by legal penalties or government persecution of dissenters, (2) government interference with affairs of both the established churches and non-established churches, (3) preferential public support of the established church (particularly in the form of direct taxes levied for the church), and (4) restrictions of civic or political participation to members of the established church. Our results are thus consistent with a modern constitutional theory that treats any one of these characteristics as a sufficient condition for an Establishment Clause violation. On the other hand, our data did not reveal confirming evidence for a number of current theories regarding the original meaning of the Establishment Clause, including (1) concerns about government display of religious symbols, (2) enactment of Sunday closing laws, (3) prayers or religious practices in public schools, or (4) providing any religious exemptions to religious believers in an even-handed way. Our results indicate that public support of religious organizations was only concerning historically in certain limited circumstances, such as when provided preferentially only to the established church. Of note for religious symbols, our findings indicate when concerns about such symbols or imagery did arise, they arose in the context of government suppressing or destroying symbols of dissenting churches. The pending American Legion case may provide an important vehicle for the Supreme Court to revise much of its current jurisprudence that is out of step with an approach that focuses on historic hallmarks of established religion that gave rise to the Establishment Clause.

This Note challenges William Blackstone's modern position as the "oracle of the law" in the eighteenth century. In a time when the status of legal doctrines at the Founding is of renewed significance in interpreting the Constitution, it is especially important to ensure that the sources of these doctrines comport with historical practices. This Note looks beyond the usual story of Blackstone's influence, as told by the significant circulation of his work. It turns instead to the work's practical significance for legal education in the decades preceding the Constitutional Convention. By using curricula and student notes-referred to as commonplace books-to discover what was actually considered influential in the legal profession of the period, a more comprehensive perspective of eighteenth-century legal thought is uncovered While Blackstone was apparently known to these late colonists, his work was far from "the most widely read law book in eighteenth-century America. " Instead, more traditional treatises and English reporters dominated legal learning until at least 1787. It is these admittedly more impenetrable works which should inform our understanding of the common law as it existed at the Founding.

... While I think it is an important realization that most of the leading jurists and lawyers did not find Blackstone [r]elevant in the first few years of the founding, I completely disagree with the implications that Mr. Minot reaches. It is important to remember that most of the jurists and lawyers at the time of the Founding were not trained. In Virginia specifically, there were dozens of supplements and guide-books for the "country" jurists and lawyers. See generally, Roeber, Faithful Magistrates and Republican Lawyers. Blackstone and his Commentaries were viewed by at least the Virginia "country" party of the law as an interloper. Lawyers and jurists like Jefferson, Madison, Wythe, Marshall, and Tucker used Blackstone, his commentaries, and other such books as a tool to standardized legal training and education, and met considerable opposition by the "country" political and legal party in Virginia. See generally, Roeber, Faithful Magistrates and Republican Lawyers; Miller, Juries and Judges versus the Law: Virginia's Provincial Legal Culture. To my knowledge, this same debate played out to different degrees in other states. So yes, Blackstone was not viewed by most of the legal community in Revolutionary-era America as the preeminent scholar of the law. However, his writings were still instrumental in forming the thoughts of the leading "court" lawyers and jurists, who formed the legal and political system we recognize today.

02/24/2019

Judges, scholars and practitioners will focus on constitutional interpretation and re-examine a landmark civil liberties case during a conference Feb. 28 at the University of Virginia School of Law.

“The Future of Originalism: Conflicts and Controversies,” sponsored by the Law School’s Federalist Society chapter, will begin at 9:45 a.m. in Caplin Pavilion. Judge Thomas B. Griffith ’85 of the U.S. Court of Appeals for the District of Columbia Circuit will introduce the symposium.

The event, which is open to the public, concludes with a re-argument of the Slaughter-House Cases, a Reconstruction-era Supreme Court ruling that narrowed citizenship rights in the privileges or immunities clause of the Constitution.

And here is the schedule:

Feb. 26, 9:45 a.m.

Introduction, Judge Thomas B. Griffith ’85, U.S. Court of Appeals for the District of Columbia Circuit

Introduction: Leslie Kendrick ’06, Vice Dean and David H. Ibbeken ’71 Research Professor of Law, University of Virginia School of Law

10 a.m.

Panel 1 | The Due Process Clause: Its Original Meaning and Future Application

Scott Ballenger ’96, Partner, Latham & Watkins; Randy Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center; John Harrison, James Madison Distinguished Professor of Law, University of Virginia School of Law; Julia Mahoney, John S. Battle Professor of Law, Class of 1963 Research Professor in Honor of Graham C. Lilly and Peter W. Low, University of Virginia School of Law

With his stunning plea for reconsideration of New York Times v. Sullivan – the landmark free-speech decision insulating the press, and speakers in general, from most libel actions – Justice Clarence Thomas has … performed a public service. Not necessarily because he’s right, but because there’s a serious issue here.

To see why, imagine that a lawyer, a blogger, a talk-show host or a newspaper lies about you -- and in the process destroys your reputation. Your accuser might say that you are a pedophile, a drug peddler, an arsonist or a prostitute. In an hour, the lie goes around the world.

If you count as a public figure, does the Constitution really mean that the law cannot provide you with any kind of redress?

And from later in the post:

Thomas is an “originalist”; he believes that interpretation of the Constitution should be settled by reference to the “original public meaning” of its terms. Thomas offers considerable evidence that at the time of ratification, those who wrote and ratified the Bill of Rights were comfortable with libel actions – and that they did not mean to impose anything like the “actual malice” standard.

A defamed individual (including a public figure) needed only to prove that a written publication was false and that it subjected him to hatred, contempt or ridicule. And for 170 years, the Supreme Court never held that the First Amendment forbids the states from protecting people from libel.

Thomas concludes that New York Times v. Sullivan, and the many subsequent decisions implementing it, were “policy-driven decisions masquerading as constitutional law.”

There are strong objections to originalism, of course. But whatever your theory of constitutional interpretation, it is hardly obvious that the First Amendment forbids rape victims from seeking some kind of redress from people who defame them.

02/22/2019

The Tenth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference at the Center for the Study of Constitutional Originalism, University of San Diego Law School, will take place today and tomorrow. Here is the schedule:

This paper is a response to Andrew Fagal, Thomas Jefferson and the Arabian Stallion: A Research Note on the Third President and the Foreign Emoluments Clause, 1(4) LAW AND HIST. REVIEW: THE DOCKET (Dec. 2018). [ed: available here]

Closing: In answering this question, i.e., Does the Foreign Emoluments/Gifts Clause apply to presidents?, my own prior research had examined the Mandan gifts and the Tsar’s gift. I did so because a president’s receiving, accepting, and keeping a diplomatic gift is some evidence that he believes his conduct in this regard is legal, i.e., compliant with the Constitution. Where the president accepts the diplomatic gift in full public view absent complaint by the public (or objections raised by later commentators), then such conduct carries a presumption that he and the contemporaneous public believed the president’s conduct was legal. Finally, where the public is in the know, where it does not complain, and where a significant element of that public is composed of the president’s opponents in Congress, in the press, and in the country at large, then that is some further and significant substantial indication that the public agrees that the president’s conduct is legal. In regard to the Mandan gifts and the Tsar’s gift, Jefferson did not clearly speak to any constitutional provision controlling his conduct; rather, to the extent he spoke at all, he reported a personal rule of conduct—a rule which he was, on occasion, willing to bend, if not waive. All told, that is some evidence, albeit not conclusive evidence, that in Jefferson’s day, the Foreign Emoluments/Gifts Clause was not understood as applying to the president (and, by implication, to other elected federal officials).

02/21/2019

Yesterday the Supreme Court issued its decision in Timbs v. Indiana, the case asking whether the Eighth Amendment's excessive fines clause applies against the states through the Fourteenth Amendment. As widely predicted, the decision was unanimous in the affirmative. Also as predicted (at least on this blog) there was lots of originalism in the opinions.

The Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta guaranteed that “[a] Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement . . . .” §20, 9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225). As relevant here, Magna Carta required that economic sanctions “be proportioned to the wrong” and “not be so large as to deprive [an offender] of his livelihood.” Browning Ferris, 492 U. S., at 271. See also 4 W. Blackstone, Commentaries on the Laws of England 372 (1769) (“[N]o man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear . . . .”)....

Despite Magna Carta, imposition of excessive fines persisted. The 17th century Stuart kings, in particular, were criticized for using large fines to raise revenue, harass their political foes, and indefinitely detain those unable to pay. E.g., The Grand Remonstrance ¶¶17, 34 (1641), in The Constitutional Documents of the Puritan Revolution 1625–1660, pp. 210, 212 (S. Gardiner ed., 3d ed. rev. 1906); Browning-Ferris, 492 U. S., at 267. When James II was overthrown in the Glorious Revolution, the attendant English Bill of Rights reaffirmed Magna Carta’s guarantee by providing that “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.” 1 Wm. & Mary, ch. 2, §10, in 3 Eng. Stat. at Large 441 (1689).

Across the Atlantic, this familiar language was adopted almost verbatim, first in the Virginia Declaration of Rights, then in the Eighth Amendment, which states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Moving to the drafting of the Fourteenth Amendment:

An even broader consensus obtained in 1868 upon ratification of the Fourteenth Amendment. By then, the constitutions of 35 of the 37 States—accounting for over 90% of the U. S. population—expressly prohibited excessive fines. Calabresi & Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868, 87 Texas L. Rev. 7, 82 (2008).

Notwithstanding the States’ apparent agreement that the right guaranteed by the Excessive Fines Clause was fundamental, abuses continued. Following the Civil War, Southern States enacted Black Codes to subjugate newly freed slaves and maintain the prewar racial hierarchy. Among these laws’ provisions were draconian fines for violating broad proscriptions on “vagrancy” and other dubious offenses. See, e.g., Mississippi Vagrant Law, Laws of Miss. §2 (1865), in 1 W. Fleming, Documentary History of Reconstruction 283–285 (1950). When newly freed slaves were unable to pay imposed fines, States often demanded involuntary labor instead. E.g., id. §5; see Finkelman, John Bingham and the Background to the Fourteenth Amendment, 36 Akron L. Rev 671, 681–685 (2003) (describing Black Codes’ use of fines and other methods to “replicate, as much as possible, a system of involuntary servitude”). Congressional debates over the Civil Rights Act of 1866, the joint resolution that became the Fourteenth Amendment, and similar measures repeatedly mentioned the use of fines to coerce involuntary labor. See, e.g., Cong. Globe, 39th Cong., 1st Sess., 443 (1866); id., at 1123–1124.

Justice Gorsuch wrote a one-paragraph concurrence, the principal point being to avoid fully endorsing incorporation through the due process clause:

As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause. See, e.g., post, at 1–3 (THOMAS, J., concurring in judgment); McDonald v. Chicago, 561 U. S. 742, 805–858 (2010) (THOMAS, J., concurring in part and concurring in judgment) (documenting evidence that the “privileges or immunities of citizens of the United States” include, at minimum, the individual rights enumerated in the Bill of Rights); Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–67, 68 Ohio St. L. J. 1509 (2007); A. Amar, The Bill of Rights: Creation and Reconstruction 163–214 (1998); M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986). But nothing in this case turns on that question, and, regardless of the precise vehicle, there can be no serious doubt that the Fourteenth Amendment requires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment.

(Congratulations to my cross-town colleague and law school classmate Bryan Wildenthal (Thomas Jefferson) for the citation to his classic article on originalism and incorporation).

Justice Thomas wrote a long concurrence in the judgment repeating his view (from McDonald v. City of Chicago) that the privileges or immunities clause is the correct basis for incorporation. From the introduction:

I agree with the Court that the Fourteenth Amendment makes the Eighth Amendment’s prohibition on excessive fines fully applicable to the States. But I cannot agree with the route the Court takes to reach this conclusion. Instead of reading the Fourteenth Amendment’s Due Process Clause to encompass a substantive right that has nothing to do with “process,” I would hold that the right to be free from excessive fines is one of the “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.

From his attack on substantive due process:

Because this Clause speaks only to “process,” the Court has “long struggled to define” what substantive rights it protects. McDonald, supra, at 810 (opinion of THOMAS, J.). The Court ordinarily says, as it does today, that the Clause protects rights that are “fundamental.” Ante, at 2, 3, 7, 9. Sometimes that means rights that are “‘deeply rooted in this Nation’s history and tradition.’” Ante, at 3, 7 (quoting McDonald, supra, at 767 (majority opinion)). Other times, when that formulation proves too restrictive, the Court defines the universe of “fundamental” rights so broadly as to border on meaningless. See, e.g., Obergefell v. Hodges, 576 U. S. ___, ___–___ (2015) (slip op., at 1–2) (“rights that allow persons, within a lawful realm, to define and express their identity”); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 851 (1992) (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”). Because the oxymoronic “substantive” “due process” doctrine has no basis in the Constitution, it is unsurprising that the Court has been unable to adhere to any “guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not.” McDonald, supra, at 811 (opinion of THOMAS, J.). And because the Court’s substantive due process precedents allow the Court to fashion fundamental rights without any textual constraints, it is equally unsurprising that among these precedents are some of the Court’s most notoriously incorrect decisions. E.g., Roe v. Wade, 410 U. S. 113 (1973); Dred Scott v. Sandford, 19 How. 393, 450 (1857).

And then on privileges or immunities:

When the Fourteenth Amendment was ratified, “the terms ‘privileges’ and ‘immunities’ had an established meaning as synonyms for ‘rights.’” Id., at 813. Those “rights” were the “inalienable rights” of citizens that had been “long recognized,” and “the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights” against interference by the States. Id., at 822, 837. Many of these rights had been adopted from English law into colonial charters, then state constitutions and bills of rights, and finally the Constitution. “Consistent with their English heritage, the founding generation generally did not consider many of the rights identified in [the Bill of Rights] as new entitlements, but as inalienable rights of all men, given legal effect by their codification in the Constitution’s text.” Id., at 818.

The question here is whether the Eighth Amendment’s prohibition on excessive fines was considered such a right. The historical record overwhelmingly demonstrates that it was.

The opinion then reviews the historical record in more detail than the majority, but essentially to the same effect.

One point of interest in Justice Thomas' concurrence is that, as the last quote above shows, he does not seem to accept that the privileges or immunities clause automatically incorporates all of the enumerated rights of the Bill of Rights against the states. Thus he may believe that some Bill of Rights rights are not incorporated and, of greater significance, he may be more open to finding that some rights, not listed in the Bill of Rights but considered fundamental at the time the Fourteenth Amendment was adopted, are applicable to the states.